일본의 ADR(대체적 분쟁해결) 기본법에 대한 검토

Abstract

In Japan owing to the changes in the social and economic climate at home and abroad, alternative dispute resolution has become an important means of achieving prompt dispute resolution based on the specialized expertise of a third party and in accordance with the actual facts of the dispute. Although there are various ADR organizations in Japan, the usefulness of ADR is not widely known to the people and so the utilization of ADR is still at a low level. Japan Justice Ministry formed and activated the review committee on ADR to discuss and establish an appropriate system for the Promotion of Use of Alternative Dispute Resolution as part of Judicial Reform. Thus the Act on Promotion of Use of Alternative Dispute Resolution (ADR Promotion Act for short) was enacted on November 19, 2004 and promulgated on December 1, 2004 and enforced as of April 1, 2007 in order to make alternative dispute resolution procedures easier to utilize, thereby enabling parties to a dispute to choose the most suitable method for resolving a dispute with the aim of appropriate realization of the rights and interests of the people. ADR Promotion Act consists mainly of Purpose (Article 1), Basic Principles (Article 3), Responsibilities of the Government and Local public entities (Article 4), Certification of Private Dispute Resolution Services (Article 5), Certification Standards (Article 6), Reasons for Disqualification (Article 7), Application for Certification (Article 8) et cetera and Nullification of Prescription (Article 25), Suspension of Legal Proceedings (Article 26), Special Provisions on Use of Certified Dispute Resolution Procedures Before Conciliation (Article 27) as Special Rules on the Use of Certified Dispute Resolution Procedures. The Japanese government was supposed to review the status of the enforcement of this Act when five years had passed after it had entered into force and to take necessary measures based on the results as required. But the consequences of the review in 2012-2014 was negative and all the revision proposals of this Act such as Grant of execution power to a compromise as a result of ADR were put off. In 2018 Japan ADR Association submitted once again the proposal including the revisions of this Act such as Grant of execution power to a compromise as a result of ADR et cetera. These experiences in Japan has taught us that it is necessary to harmonize ideals on ADR with reality in designing and establishing Korean ADR Act in the near future. Consequently I’m pretty sure that it is desirable for us to have express provisions such as Certificate System and Grant of execution power in Korean ADR Act which Japan ADR Association proposed as long as they don’t threaten the principle of autonomy in ADR procedures.